Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Meetings Decision
This matter having been presented to the Attorney General in an open meetings appeal, and the Attorney General being sufficiently advised, we find that the Oldham County Board of Education violated KRS 61.823(4)(a) when it failed to provide written notice of its April 25 and 26, 2012, special meetings to media organizations that had filed written requests with the Board to be notified of its special meetings. Whether the Board also violated KRS 61.815(1)(c) by taking final action in a closed session conducted during its April 30, 2012, meeting is a closer question.
In a written complaint directed to Oldham County Board of Education Chairperson Joyce Fletcher on May 1, 2012, Dick Richards alleged that the Board failed to give proper notice of the April 25 and 26 special meetings and proposed, as a means of remedying the alleged violations, that the Board "hold both meetings again." Having reviewed the minutes of the Board's April 30, 2012, meeting, and considered the Board's response to his original complaint, Mr. Richards submitted an amended complaint on May 3. In it, he alleged that the Board improperly "established [the agenda for the April 25 and 26 special meetings] at the beginning of those illegal meetings" and that it may have failed to adhere to the requirements for going into closed session, acknowledging that "no members of the public were present . . . to judge whether . . . the closed sessions were properly announced. " Additionally, he alleged that the April 30 meeting minutes confirm that the Board violated KRS 61.815(1)(c) when it "took a final action in closed session in deciding who would be the new superintendent. " He noted that the minutes reflect "that upon returning to open session, 'Joyce Fletcher read the following statement . . .,' going on to say 'the Board has selected Dr. Will Wells as the new superintendent. '" Mr. Richards proposed a variety of remedial measures relative to these alleged violations. 1
The Board responded to each complaint through General Counsel Anne Courtney Coorssen. Ms. Coorssen conceded that The Courier-Journal and The Oldham Era were not notified of the Board's April 25 and 26 special meetings, explaining that these meetings "were scheduled through the liaison to the [superintendent] screening committee rather than through the superintendent's administrative assistant, which is the normal course of business." Continuing, she observed:
Since there is no requirement to notify you or the general public of a special-called meeting, you may not have been aware of the dates or times even if the Board had complied fully with the notice requirements. More importantly, neither you nor the public would have been privy to the personnel discussions held in closed session, which were the only agenda items for these meetings.
Ms. Coorssen asserted that both meetings were otherwise properly noticed. 2
In response to Mr. Richards' amended open meetings complaint, Ms. Coorssen again conceded error with regard to the improperly noticed April 25 and 26 special meetings, but denied his allegation that the Board improperly "established [the agenda] at the beginning of those illegal meetings." Approval of a meeting agenda, Ms. Coorssen explained, is not synonymous with establishing an agenda. It was her position that the agenda was developed in advance of the April 25 and 26 meetings and merely approved at those meetings.
Turning to Mr. Richards' complaint that the Board took final action on the selection of a new superintendent in closed session, Ms. Coorssen explained:
Deliberation on personnel matters that may lead to the appointment of an individual employee is clearly allowed by the OMA (KRS 61.810(1)(f)). The board exercised their prerogative to deliberate in private prior to emerging from executive session and announcing their selection as the new superintendent. No final action was taken until Ms. Fletcher called for a motion to approve offering a contract to Dr. Wells which is in full compliance with the OMA. The statement that Mrs. Fletcher made after coming out of executive session was prefatory to calling for a motion. The full statement by Mrs. Fletcher was as follows:
The Board then approved the selection of Dr. Wells in public session with the following motion:
Ms. Coorssen maintained that "there is no requirement to hold a meeting with the public as a part of the superintendent hiring process," but that the new superintendent "was selected in public session at the regularly scheduled April 30 Board meeting in compliance with the OMA."
Upon receipt of notification of Mr. Richards' open meetings appeal, the Board amplified on this position through Ms. Coorssen explaining:
Clearly, if the Board is allowed to compare, discuss, and eliminate candidates in closed session, the fact that at the conclusion of these activities only one candidate remains is not a violation of the Open Meetings Act. Through discussion, the Board reached a consensus as to who their selection would be; however no vote was taken in closed session. The Board could have just as easily announced that they had "eliminated" all of the candidates but one upon their return from closed session; although this has a rather negative tone for announcing such an important decision.
Again, she asserted, "the Board members conducted a lawful vote in open session . . . to employ an identified individual as the new superintendent. " Respectfully, we find that the Board is only partially correct in its analysis of the open meetings issues presented.
The Board acknowledged violation of KRS 61.823(4)(a) based on its failure to provide written notice of its April 25 and 26 special meetings to The Courier-Journal and The Oldham Era . While we appreciate the Board's candor in this regard, we remind the Board that "procedural violations" of the type alleged undermine the express purpose and intent of the Open Meetings Act: "[T]o maximize notice of public meetings and actions." Floyd County Board of Education v. Ratliff, 955 S.W.2d 921, 923 (Ky. 1997). "Notice to the media, " this office has often noted, "is notice to the public." OAG 79-121, p. 1 cited in 99-OMD-167, 01-OMD-135, 05-OMD-138, 08-OMD-009. Failure to notify the media largely subverts the public's right to notice of special meetings and must not be casually dismissed as a mere "procedural violation." While it is true that the Board had no obligation to provide individual written notice of special meeting to interested parties, 3 fulfilling its statutory obligation by providing written notice to media organizations that had filed a written request to receive notice of special meetings, the Board's suggestion that "there is no requirement to notify [Mr. Richards] or the public generally of a special-called meeting" is contrary to the spirit and the letter of the Open Meetings Act. Regardless of whether the public "would have been privy to the personnel discussions" at the April 25 and 26 special meetings, or who was at fault in failing to ensure proper notice, the Board was statutorily obligated to notify The Courier-Journal and The Oldham Era of the meetings to ensure notice of those meetings to the public.
We share the Board's view that Mr. Richards did not state a cognizable claim of an open meetings violation based on its "approval" of the special meeting agendas at the April 25 and 26 meetings. The record on appeal contains identical special meeting agendas for these meetings identifying four agenda items:
I. Call Meeting to Order
II. Agenda Approval
III. Consider Executive Session on Personnel Matters (KRS 61.810(1)(f))
IV. Adjourn
"Approval" of the agenda is a pro forma practice in this context and not, as Mr. Richards alleges, synonymous with creation of an agenda contemporaneous with the occurrence of the meeting in contravention of KRS 61.823. Nothing in the record on appeal suggests otherwise.
So, too, we concur with the Board in its view that Mr. Richards erroneously leveled allegations of open meetings violations against the superintendent selection committee with the presiding officer of the Board of Education. KRS 61.846(1) requires an open meetings complainant to submit his or her complaint "to the presiding office of the public agency suspected of the violation of KRS 61.805 to 61.850." The Board emphasizes that the screening committee exists by virtue of KRS 160.352 and is not a committee of the Board of Education. Although the Board contributed to Mr. Richards' misunderstanding by assuming responsibility for responding to the allegations against the screening committee that appeared in his original complaint to the Board, and by taking remedial measures relative to those allegations, the Board later maintained that his complaint was misdirected. We believe its later position comports with the language of KRS 61.846(1). Mr. Richards is, of course, free to present allegations concerning violations of the Open Meetings Act by the screening committee to that committee's presiding officer and, if those allegations are denied, pursue a separate appeal through this office or the courts.
Although the question presented in Mr. Richards' amended complaint is a closer one, we also conclude that the Board did not violate KRS 61.815(1)(c) by taking final action in closed session. In the interest of brevity, we will not restate the facts giving rise to this allegation except to note the Board's unfortunate choice of words in emerging from the April 30 regular meeting executive session and announcing that it "ha[d] selected Dr. Will Wells as the new superintendent of the Oldham County Public Schools." Although this statement, which was apparently read into the record, could certainly be interpreted to suggest that a final decision was made in closed session, we share the Board's view that KRS 61.810(1)(f) authorizes closed session discussion and comparison of applicants for public employment, and that such discussions inevitably narrow the search to the best qualified candidate. Regardless of whether the Board moved, in open session, to select Dr. Wells as the new superintendent, or to extend an offer of employment to Dr. Wells, the result was the same. The public was not denied the opportunity to observe how each Board member voted on the selection of, or the extension of an offer to, Dr. Wells, 4 and was not statutorily entitled to observe the closed session discussion that led to that "appointment" or "offer of appointment. " KRS 61.810(1)(f) . Bearing in mind the importance of the public's right to know, we believe that this allegation arose from a semantic distinction that lacked a meaningful difference. We therefore find that Mr. Richards' allegation that the Board violated KRS 61.815(1)(c) by taking final action in closed session is not supported by the record on appeal.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), the Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.
Distributed to:
Dick RichardsJoyce FletcherPaul UpchurchAnne Courtney Coorssen
Footnotes
Footnotes